TTIP and the NHS

TTIP or the Transatlantic Trade and Investment Partnership is a comprehensive free trade agreement currently under negotiation by officials of the European Union and USA.

The negotiations, which began in July 2013, have been conducted out of public scrutiny with the aim of getting the agreement into law as soon as possible before the negative implications of the TTIP became public knowledge.

However, as the negotiations have dragged somewhat, opposition has mounted across Europe to TTIP. Originally scheduled for completion in early 2016, the negotiations completed their 13th round in ealry 2016.

There are several strands to the TTIP – deregulation, new market development and the putting in place of ‘investor-state dispute settlement’ (ISDS) legislation.

At the heart of TTIP is the removal of regulatory barriers to trade that restricts the profit of large multinational corporations. TTIP targets the removal or lowering of regulations for food and environmental safety, digital privacy and employment to bring them in line with the much lower level of regulation present in the USA.

In reverse, the tougher regulations on banking in the USA, brought in after the banking scandals of the past few years, would be lowered to the levels seen in the EU.

Concerns for the NHS

There are serious concerns over the implications of TTIP on the NHS. Firstly, there is the aim of TTIP to create new markets in Europe for transnational corporations. TTIP will open up all public services, including the NHS, to competition from transnational corporations and the result will be a wave of privatisations.

TTIP works on the approach that all services are open to privatisation unless they are specifically listed as exempt; to date David Cameron has refused to say that the NHS will be exempt.

Furthermore, under TTIP any reversal of privatisation will be made extremely difficult, if not impossible, by the introduction of ISDS legislation which grants foreign companies the right to sue sovereign governments for loss of profit as a result of public policy decisions. This could lead to governments facing numerous hefty lawsuits if any attempt is made to reverse privatisation.

In February 2016 the union Unite submitted new legal advice to the government compiled by the leading QC, Michael Bowsher QC, a former chair of the Bar Council’s EU law committee. Bowsher concluded that the deal poses “a real and serious risk” to future UK government decision making regarding the NHS.

According to Bowsher, TTIP would give investors new legal rights, which extend beyond both UK and EU law as well as NHS contracts. He also said that TTIP’s procurement rules could force the NHS to contract out services it wants to keep in house or spin off them off as “mutuals”

Secret negotiations

As the negotiations continued in secrecy through 2014/2015 and into 2016, public pressure has increased throughout the EU to pull out of negotiations as the negative aspects of the deal became more apparent. In the UK particular concern has been expressed about the NHS not receiving an exemption from inclusion in TTIP.

In July 2015, MEPs, responding to public pressure across Europe, voted to approve a resolution on TTIP. This resolution addressed several of the concerns expressed by many parties about the impact of TTIP, including on the NHS. The resolution is not legally binding, but it was viewed as sending a message to the EU's negotiators about what was acceptable in the agreement.

In particular, the resolution supports the exclusion of Services of General (Economic) Interest, including public health services, from the scope of TTIP. It also reaffirmed the right of national and local authorities to regulate in the public interest.

In the area of ISDS, it called for the EU’s negotiators to look to the recent proposals from the European Commission for a reformed ISDS. At the time of the resolution, the EC published proposals for a new permanent solution for resolving trade disputes in place of ISDS, including independent professional judges and an appeals mechanism and eventually the setting up of a public International Investment Court.

Lack of transparency

For campaigners against TTIP, transparency has always been a major issue as the negotiations are secret. Pressure on this front resulted in Emily O’Reilly, the European Ombudsman, opening a public consultation about improving transparency and will make recommendations.

In addition, in October 2015, the European Commission released the text of the EU's negotiating mandate, agreed by the Member States. Meanwhile, the negotiations continue in secret, with very little information available.

In October 2015, the 11th round of the secret negotiations completed. However, despite reports from the EC and the resolution from the MEPs it is still impossible to say exactly what the implications are for the NHS until the final wording of the agreement is revealed.

It is still possible that the ISDS will be included in the agreement with no strong safeguards to prevent the process being used to make changes to public policy by an elected government difficult or even impossible. It is also still not clear whether the final agreement will contain wording with regard to public service exemptions that is strong enough to protect the NHS. Furthermore,

it is still possible that TTIP will contain what is known as a “ratchet” clause, whereby services that are privatized cannot be returned to being publically owned following a change of political policy.

Members of the EC have sought to reassure UK MPs on the potential impact of TTIP on the NHS; in July 2015, Ignacio Garcia Bercero of the European Commission (Directorate-General for Trade) wrote to the Chair of the All-Party Parliamentary Group on TTIP and Jean- Luc Demarty, Director General for Trade at the European Commission, wrote to the Chair of the House of Commons Health Committee, in December 2014 with reassurances. However, the concern shared by numerous members of political parties with the exception of the Conservative party, has continued unabated.

Despite all reassurances, the only details that the public has seen on TTIP have come from leaks.

Political opposition

In late October 2015 the leaders of almost every other political party in the UK, apart from the Conservatives and the Liberal Democrats, signed an appeal to seek to prevent TTIP becoming a way for US big business to take over the NHS.

The appeal was organized by the union Unite and signatories included Jeremy Corbyn Labour leader, Scotland’s First Minister, Nicola Sturgeon, the Ukip leader Nigel Farage, the Green Party leader Natalie Bennett, Plaid Cymru leader Leanne Wood, and by Peter Robinson of the Democratic Unionist Party, and Sinn Fein’s Martin McGuinness.

In the same month a petition containing over 3 million signatures from across Europe was handed in to Jacqueline Minor, the EC’s head of representation in the UK. Members of the organising groups, including Global Justice Now, 38 Degrees, Friends of the Earth, War On Want and Stop Aids, also handed the representative a letter, calling on the European Union and its members states to stop the negotiations with the USA on the TTIP.

At the same time, David Cameron made a speech at the Conservative party conference in which he defended TTIP.

2016 state of play

By May 2016, 13 rounds of talks had taken place, but things have not gone smoothly. In early May 2016 documents leaked from the secret talks, obtained by Greenpeace, highighted that there were "irreconcilable" differences over free trade and over US demands that would require the EU to break promises it has made on environmental protection.

A few days later France's President François Hollande said he would reject TTIP “at this stage” because France was opposed to unregulated free trade. In Germany, a senior government minister has criticised the US approach to negotiations.

David Cameron, on the other hand, is still insisting that the deal is a good one.

All 28 EU member states and the European parliament would have to ratify TTIP before it comes into force.

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